Can employers discriminate against certified medical marijuana users?

Kate Malongowski @bctkate

Monday

Apr 30, 2018 at 12:00 PMApr 30, 2018 at 3:38 PM

ALIQUIPPA — Most 26-year-olds don’t have to keep track of their various medications with an oversized seven-day pill box.

But it’s a reality for Evan D’Orazio, who spread numerous bottles of prescription and over-the-counter medications he’s been taking to treat his fibromyalgia symptoms across his kitchen counter on a rainy spring afternoon.

Since he was 19, he has been periodically plagued with widespread body pain due to his severe fibromyalgia, which is sometimes compounded with digestive and concentration issues.

“Honestly, the best way I can describe it: It feels like if you had a hangover and the flu, but were awake for three days straight,” said D’Orazio, of Aliquippa, who was diagnosed about three years ago. “I have insomnia too from it, so it's a constant battle of trying to work and have a normal life while dealing with this.”

Fibromyalgia is a chronic disorder with no known cure, but medications can help control symptoms.

At one point he had the strength to be a powerlifter, but now he’s thankful to be able to get through his workday without being in pain.

Some of the medications he’s taken have had severe side effects, like seizures and suicidal thoughts.

There is medicine that D’Orazio believes could help more than his current prescriptions, and could maybe eliminate his pill box organizer entirely, but getting it could mean he’d be at risk of losing his job. He’s considering medical marijuana as an option, which was suggested by his primary care physician. His doctor did not return phone calls for interview requests.

Pennsylvania's first medical marijuana dispensaries opened in February, which include pills, vape pens, oils and tinctures as forms of medication for those who have a doctor’s recommendation, but it’s not currently legalized in dry leaf, flower or edible form.

There are 17 approved serious medical conditions for which patients can potentially seek medical marijuana as a form of treatment. That includes severe chronic pain that cannot be alleviated through other means, such as therapeutic intervention or opiate therapy, according to the Pennsylvania Department of Health.

D’Orazio decided to ask human resources at his employer, which he has asked not be identified in this story, about their drug testing policies. He’s currently a contracted worker, but has the possibility of being hired full time.

According to an email exchange provided to The Times, his employer said that if someone tested positive for marijuana during a pre-employment physical, a random or reasonable suspicion test, it would be considered a failed test regardless of whether the individual had a doctor’s recommendation to use medical marijuana or not.

“It feels like I'm being discriminated against, because I can't have a normal life because of that law," he said.

He explained others with chronic health conditions don't have to make a choice between their job and their medicine.

"If a workplace would say, this is an insulin-free workplace. We don't hire diabetics. It's a weird example, because you know, the federal law, and it's different medicine and stuff like that,” he said. “But at the same time, if you have any kind of severe condition, whether it be cancer or fibromyalgia or any kind of disease or condition where medical marijuana can actually help you and get your life back in order, it seems like you're kind of stuck in a rut.”

D’Orazio said he otherwise has had a good experience working for his employer, and had once hoped to be there on a long-term basis before knowing about the drug testing policies.

"It's one of those things,” he said. “It's like, do I stay there and be in pain? Or do I have to try to find something else where I might have a chance?”

It’s a question many Pennsylvanians are facing in the advent of legalized medical marijuana.

Drug testing concerns

Having concerns about employee drug tests is common among those considering medical marijuana as a form of treatment.

Diana Briggs, founder of Pennsylvania Compassionate Caregivers based in Export, has received questions about employee drug testing at least once a week, although her nonprofit primarily deals with caregiver assistance.

While she is thrilled about the medical marijuana program now being a reality in Pennsylvania, there are other aspects of the law that still haven’t caught up quite yet. It’s up to an individual to disclose to their employer whether they’re a certified user or are considering becoming one.

“Let's be honest: Most people that are taking oxycodones everyday don't go to work and tell their boss. And they're still out there driving on our roads, and operating machinery and all of the other things,” Briggs said. “... I understand the fear of it. You've got to have a job to actually to be able to afford this program. Insurance is not going to pay for any of this, so that also is extremely frustrating.”

There are other concerns too.

Jean Novak, a Pittsburgh-based attorney at Strassburger McKenna Gutnick & Gefsky with employment expertise, said while there are gaps in state law, the law is clear that being a certified medical marijuana patient is a protected status.

“So an employer can't fire an employee simply because that employee is a certified patient,” Novak said. “However, the qualifications about what an employee can and cannot do tend to hinge on the idea of impairment.”

Federal contractors can enforce a drug-free workplace, she added.

And marijuana impairment, unlike other forms of drug impairment, can only be proven through a blood test that’s done within a couple hours of ingestion, said Patrick Nightingale, an attorney with Cannabis Legal Solutions and executive director of the Pennsylvania Medical Cannabis Society.

“Often the employee will be sent for a urine test, and a urine test can only screen for THC metabolites, and cannot accurately suggest or show whether or not a person is actually impaired by THC,” Nightingale said. “... That random urine screen is most certainly going to take, show very high levels of THC metabolites if that patient is medicating on a daily basis, presuming they're not medicating during the job, they're not impaired during the job, but use medication when they get home.”

THC, or tetrahydrocannabinol, is the primary psychoactive ingredient in marijuana.

Ideally, Novak said she would like to see a situation where an employee can disclose medical marijuana certification to a testing agency and send a deemed negative test to an employer, which can be done for drug tested substances, such as opioids or barbiturates, that have valid prescriptions.

Quest Diagnostics, a major drug testing agency with about 2,000 patient locations in the United States, does not have a standard process to verify a medical marijuana recommendation when they perform workforce tests.

A medical review officer can interview an employee after positive results were found “to determine if there is an alternative medical explanation for the laboratory finding,” which could be the case for a prescription medication, but not with certified medical marijuana, said said Barry Sample, senior director of science and technology with Quest Diagnostics Employer Solutions, in an emailed statement.

Essentially, it's uncharted territory, Novak said.

"My personal opinion is that the testing agency should return a deemed negative test so long as they can certify that you are using consistent with your recommendation,” she said. “But my understanding in talking with doctors is it may not be that easy to figure out if a person is using consistent with the recommendation."

Novak and Nightingale believe it’s only a matter of time until there’s a legal case in Pennsylvania to see what happens in a situation when an employee is terminated.

“That's the worst thing to tell a prospective patient,” Nightingale said. “That, 'hey, want to be our test case? Let's find out. Go ahead and get fired and I'm willing to litigate the case'… As attorneys, that's something that you hate to say to somebody.”

Do you think an employer should know if an employee has a medical marijuana certification?YesNoI'm not sure pollcode.comfree polls

In the meantime

As of April 20, there were 31,500 people registered to participate in Pennsylvania’s medical marijuana program statewide, with nearly 13,500 patients who have been certified, and 12,580 who have purchased ID cards, according to Nate Wardle of the Pennsylvania Department of Health.

Nightingale said he believes those numbers could be higher if it weren't for people who have concerns with potentially losing their jobs.

"Anecdotally speaking, I have seen a number of potential patients who are reluctant to register and utilize medical cannabis due to employment concerns. I also know employers themselves want to comply with the law and don't want to lose valuable employees," he said. "Practically speaking, we just can't know what will happen until someone gets fired for medical cannabis use. Same with people who want to apply for a job that has drug testing."

For now, D'Orazio has put trying to obtain a medical marijuana certification on hold, and has been trying to find employers who do not drug test employees.

"Hopefully, we can change the perspective of employers. I want to help other people who are going through the same issue. People shouldn't be criminalized because of their health," he said. "It's not fair that people should suffer when there is a solution available. People who are suffering should be able to have a normal life without losing their job."

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